Citation Nr: 1331367 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 06-29 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left hip disability, to include as secondary to a service-connected left knee disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina which, in part, denied service connection for a left hip disability. Jurisdiction of this matter has since been transferred to the RO in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge at a June 2013 Travel Board hearing. A copy of that hearing transcript has been associated with his claims file. FINDING OF FACT The evidence of record favors a finding that the Veteran's left hip disability is related to his service-connected left knee disability. CONCLUSION OF LAW A left hip disorder was caused or aggravated by his service-connected left knee disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA"s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Given the favorable disposition of the claim for service connection for a left hip disability as secondary to a service-connected left knee disability, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2012). This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. at 448, see also 38 C.F.R. § 3.322 (2012). The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, was amended during the course of the Veteran's claim and appeal. The intended effect of this amendment was to conform VA regulations to the Allen decision. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). However, given the possibility that these changes could potentially be interpreted as substantive, and because the Veteran's claim was pending before the regulatory change was made, the Board will apply the version of 38 C.F.R. § 3.310 that was in effect before the change, which arguably favors the claimant. Accordingly, the Board will evaluate the claimed disabilities, irrespective of any baseline. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran contends that he has a current left hip disability that was caused or aggravated by his service-connected left knee disability. The Veteran underwent a VA examination in January 2009. X-rays of both hips demonstrated no significant osseous, articular or soft tissue abnormality except for small superior acetabular rims spurs formation. The impression was an essentially normal examination except for small superior acetabular spurs. The examiner opined that there was a medical diagnosis shown on the examination that could be attributed to the Veteran's claim of secondary service connection for a left hip condition. The examiner indicated that the formal diagnosis of the left hip (actually bilateral hip) condition was bilateral hip degenerative joint disease. The examiner also determined that it was at least as likely as not that the Veteran's bilateral hip disability was a result of the service-connected degenerative joint disease of the left knee. The examiner noted a rationale from an article about osteoarthritis in which a rheumatologist noted that while osteoarthritis can be limited to a single joint, in many cases it progressed to involve other joints often in a sequential fashion. In a June 2010 addendum opinion, a VA nurse practitioner determined that it was at least as likely as not that that the bone spurs on the January 2009 VA x-rays are indicative of degenerative joint disease of the hips. She noted that a bone spur or ostophyte is a bony projection that forms along joints. They are seen in conditions like arthritis. Bone spurs were common around the hip joints and are most often caused by arthritis. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a left hip disability as secondary to the Veteran's service-connected left knee disability is warranted. The Board notes that under the rating schedule, osteoarthritis must be demonstrated by X-ray examination. 38 C.F.R. § 4.71a, Diagnostic Code 5003. While the January 2009 x-ray of the left hip was an essentially normal examination except for small superior acetabular spurs, the June 2010 VA addendum opinion specifically determined that the January 2009 x-rays which demonstrated bone spurs were indicative of degenerative joint disease of the hips. The addendum opinion included a rationale of this conclusion and its conclusion is significantly not contradicted by any other medical evidence or opinion. The Board also notes that service connection for osteoarthritis of the right hip was granted by the RO in a June 2010. In granting service connection, the RO relied on the same June 2010 VA addendum opinion that it was at least as likely as not that the bone spurs were indicative of degenerative joint disease of the bilateral hips. Thus, based on the evidence to include the June 2010 VA addendum opinion, the Board finds that the Veteran has a current left hip disability. Additionally, the Board notes that the January 2009 VA opinion regarding the nexus of a left hip disability to the Veteran's service is not contradicted by any other medical evidence or opinion. Accordingly, when resolving all doubt in the Veteran's favor, the Board concludes that a grant of service connection for a left hip disability as secondary to the service-connected left knee disability is warranted as there is evidence of a current left hip disability as well as a nexus or relationship between this disability and his service-connected left knee disability. Additionally, a remand for a VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a left hip disability as secondary to the service-connected left knee disability is granted. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a left hip disorder, to include as secondary to a service-connected left knee disability, is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs